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Section 2: Acquisition Procedures for Federal Lands (for State)

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Procedure

ROW PD should negotiate directly with any federal agency, unless the federal agency requests that the negotiations be handled through FHWA. The ROW Program Office makes all requests to FHWA. Federal right of way acquisition must be initiated at the earliest possible point in project development.

ROW PD request to FHWA includes the following information:

When negotiating through FHWA, deeds for conveyance of right of way owned by the federal agencies are prepared by ROW PD, unless FHWA, at its discretion, chooses to prepare them. Such deeds should contain any clauses required by FHWA and the agency involved. When the ROW Program Office in Austin prepares the deed, it is submitted to FHWA for review and execution. Following execution, ROW PD records the deed in the appropriate land record office and provides FHWA with the recorded instrument.

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Functional Replacement of Real Property

When publicly-owned real property, including land and/or facilities, is to be acquired for a project receiving federal participation, in lieu of paying the fair market value for the real property, TxDOT may provide compensation by functionally replacing the publicly-owned real property with another facility that will provide equivalent utility.

A functional replacement arrangement will only be considered on a case-by-case basis and requires approval from the ROW Program Office and ROW Legal.

Federal-aid funds may participate in functional replacement costs only if the following conditions are met:

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  1. TxDOT elects to provide functional replacement.
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  2. The property in question is in public ownership and use;
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  3. The replacement facility will be in public ownership and will continue the public use function of the acquired facility;
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  4. TxDOT has informed, in writing, the entity owning the property of its right to an estimate of just compensation based on an appraisal of fair market value and of the option to choose either just compensation or functional replacement;
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  5. The FHWA concurs in TxDOT's determination that functional replacement is in the public interest; and
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  6. The real property is not owned by a utility or railroad.
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Federal Land Transfers

Functional replacement of real property in federal ownership shall be in accordance with federal land transfer provisions of 23 CFR 710.509.

Federal-aid participation in the costs of functional replacement is limited to costs that are actually incurred in the replacement of the acquired land and/or facility and are:

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  1. Costs for facilities that do not represent increases in capacity or betterments, except for those necessary to replace utilities, to meet legal, regulatory, or similar requirements, or to meet reasonable prevailing standards; and
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  2. Costs for land to provide a site for the replacement facility.
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Property Adjustment Work on Federal Lands (by State)

In acquiring federal property, the federal agency may request property adjustment work. Since the state cannot condemn land owned by a federal agency, acquisition by negotiation is mandatory. If negotiation is unsuccessful, the project must be altered to eliminate the federal right of way parcel. TxDOT policy allows property adjustment work if it is necessary due to the highway improvement. There should be no conflict with applicable state law. If property adjustments are required, the parcel is appraised and the approved value is the basis for determining the limits of state cost participation.

When adjustments are necessary, there should be an agreement with the federal agency regarding adjustments to be performed. If further assistance is needed, contact the ROW Program Office.

To obtain federal participation, adjustment work must be included in the construction contract, which requires Design Division approval. Alternately, adjustment work may be accomplished by preparing a separate PS&E package. The PS&E needs to bear the signature of the authorized federal agency representative. The cost of such adjustment work is charged to the right of way project.

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Forest Service Lands

All right of way transfers for federal-aid transportation projects involving Forest Service lands are accomplished using Highway Easement Deeds rather than Special Use Permits. This is in agreement with the FHWA and the USDA Forest Service. Procedures must be in agreement with memoranda issued by FHWA and furnished by the ROW Program Office.

If ROW PD cannot negotiate directly with the Forest Service, the land transfer request must be processed through FHWA if the highway is on the federal highway system or if the project is to be constructed using federal funds. Requirements for the application, maps, and property descriptions to be submitted to the ROW Program Office are included previously under the Procedure subsection.

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Lands under Jurisdiction of Corps of Engineers

In acquiring right of way from the U. S. Army Corps of Engineers, ROW PD should negotiate directly with the Corps unless they request FHWA assistance. If ROW PD requests negotiation assistance from the ROW Program Office, ROW PD will submit a property description of the land.

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Lands under Jurisdiction of Bureau of Land Management (BLM)

If ROW PD cannot negotiate directly with BLM, right of way needed from BLM is acquired through FHWA with the ROW Program Office initiating the conveyance request. In addition to submission requirements described under the Procedure subsection, a property description must be attached to the deed to be executed by FHWA.

Due to the extended time required to obtain title, the conveyance request must be made as soon as right of way requirements are known. If the BLM has a local office convenient to the ROW PD local office, then discuss highway design and acquisition with that office before making formal request for FHWA assistance.

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Lands under Jurisdiction of U. S. Fish and Wildlife Service (USFWS)

Lands under jurisdiction of USFWS, such as National Wildlife Refuge property, may be eligible for a right of way easement to be granted (typically, for a 50-year term). Refer to 50 CFR, Part 29, Subpart B - Rights-of-Way General Regulations. These regulations require that a letter application be sent to the Regional Director of the USFWS.

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